Author: David Newhoff

David is an author, communications professional, and copyright advocate. After more than 20 years providing creative services and consulting in corporate communications, he shifted his attention to law and policy, beginning with advocacy of copyright and the value of creative professionals to America’s economy, core principles, and culture.

EFF Sides With Goliath (again) in Opposition to CASE Act

Now that the bill creating a small claim provision for independent authors of works is making progress in Congress, EFF has pivoted to its standard late-stage strategy whenever they try to kill legislation: the dissemination of scare-mongering bullshit. I do not mean that I disagree with them. There are not two sides to the story they are telling or considerations about which well-meaning parties can disagree. I mean the EFF is just plain lying when they try to scare people into believing that “Life-altering lawsuits could come to regular internet users” as a result of the CASE Act. No they bloody-well cannot.

The narrative being pushed by the EFF is that the small-claim provision will make litigation so easy for claimants, that more copyright owners will go after more regular folks. They want me to believe this means a higher probability that if my kids, for instance, share memes with photographs, I could be liable for damage awards that would indeed be damaging to my ordinary income.

But as explained in previous posts (because one can actually read the bill), CASE does not make enforcement so easy that rightsholders are suddenly going chase down every innocuous use of their works looking for quick payouts from ordinary users. For instance, rightsholders are limited in the number of claims they can file by both statute and their own resources. So, as a matter of common sense, if you could only file so many claims at a time, are you going to pick the handful of commercial users who should have licensed your work, or are you going to try to file against hundreds of users who might have shared some meme that was made out of your work?

Then, of course, there is that nagging little detail that the small claim tribunal is a VOLUNTARY alternative dispute resolution procedure. How can a process that is VOLUNTARY possibly result in what the EFF is alleging? Any notice served must prominently state that the tribunal is voluntary, and this will be repeated by the Copyright Claims Board when it sends its notice. I am always amazed that organizations like EFF, who claim to defend the internet, seem to think that this kind of information is not available to ordinary people via the internet. One might almost think the organization is behaving like…what do they call them?…gatekeepers?

The EFF presents itself as a crusader standing up for ordinary people against the powerful, whether that power is held by public or private institutions. Yet, their dishonest portrayal of the CASE Act is further evidence that their defense of the “little guy” does not seem to include all the defenseless victims of the digital age. The fact that their definition of the “little guy” does not embrace the working photographer who gets ripped off is no surprise, of course. After all, they do not even consider victims of harassment, revenge-porn, or trafficking to be worthy of so much as a conversation about altering Section 230’s immunity for web platforms that profit from these crimes.

By now, it is clear to most people that the internet creates new opportunities for bad actors just as it creates new opportunities for good ones. The EFF is not responsible for this unavoidable condition, but they do appear to have chosen sides, consistently determining that certain victims are worth sacrificing for what they have determined is the “greater good.” Who put them in charge of making that decision is a solid question, but it is hard to miss the fact that the “greater good” does frequently align with the interests of the major internet and high-tech corporations.

On the other hand, maybe the EFF is not the Silicon Valley shill that many have accused the organization of being. Maybe they sincerely believe what they are saying about the CASE Act and are not liars so much as they are merely incompetent. Either way, it’s scare-mongering bullshit. And don’t we have enough of that on the internet? Including more than a few of those precious memes the EFF is so worried about.

NYT tech editor Jeong sticking copyright criticism where it doesn’t belong.

Holy whiplash segues, Batman.  There I was reading a perfectly interesting article by Sarah Jeong on the potential hazards of selling one’s personal data, when she took an incomprehensible—if mercifully brief—detour into the realm of copyright law.  She presents a reasonable enough case that the companies now offering to help us “broker” our private data (e.g. health information) may be counting on the fact that, “There’s no legal property right to personal data.  Once personal data is gathered, it’s out there for anyone to buy and sell. At the moment, there are no legal grounds to demand compensation for use,” Jeong writes.

Fair enough.  It is certainly true that the whole prospect of selling private data, even if it were a good idea, does implicate a relatively novel legal framework.  And while I am personally inclined to agree with Jeong that the whole notion is fraught with hazards, I am at a loss to understand where she is going with this interjection …

“In any case, we already know what happens when property rights get slapped on information, because we’ve already done it, to some degree, in copyright law. 

Giving people ownership of their creative expressions means they can buy and sell them on the open market. The risk is that an artist will wind up, like Taylor Swift, alienated from her own work because she no longer possesses the masters of some of her earlier recordings.”

Swift in late June stated publicly that she was very disappointed to learn that mega-star manager Scooter Braun will be acquiring Big Machine Label Group, which still owns her master recordings dating back to the start of her career.  Swift calls the prospect of being under contract to Braun her “worst nightmare,” and for the sake of this post, we will take her word that he is an “incessant manipulative bully” because digging into that backstory could not matter less to Jeong’s ham-fisted allusion to the supposed problem with copyright.  

Even more bizarrely, Jeong happened to pick an artist who has adamantly defended both her own rights and those of much smaller artists, and who told Rolling Stone in 2014, “Important, rare things are valuable. Valuable things should be paid for. It’s my opinion that music should not be free, and my prediction is that individual artists and their labels will someday decide what an album’s price point is. I hope they don’t underestimate themselves or undervalue their art.”  So, I’m just spitballing here, but maybe Swift did not recently do an about-face on the purpose of copyright, or even abandon all prospect of working with labels, so much as she was just saying she really does not like Scooter Braun.  

Turning to Jeong’s implications about the nature of copyright, it is clear that she should refrain from the topic altogether.  For one thing copyright does not “slap property rights onto information.”  Quite the contrary.  There is in fact a long history of statutory development and caselaw that makes it very clear that information is not the subject of copyright.  Expression is the subject of copyright, but the way Jeong slaps these two sentences together makes it seem as though information and expression are the same thing—especially in the context of an editorial that is all about data, which has no resemblance to expression.  

At that point, I guess what Jeong is trying to say is that if we can own and sell our data, then, like Taylor Swift and her masters, we could wind up very unhappy about the party that buys the data.  I think that disappointment is almost a guarantee and that we should be shoring up statutes against privacy-invasion rather than looking for ways to market our DNA profiles and whatnot.  But, that said, what in blazes does the unprecedented challenge of mass data collection and its privacy implications have to do with about three centuries (though I would argue more) constructing a legal framework for authorial rights?  Not a damn thing.

Interestingly enough, the paper written by Samuel Warren and Louis Brandeis in 1890, which is widely considered the seminal American work articulating a right of privacy, actually turns to copyright law as starting point.  Because there is no constitutional declaration of a right to privacy Warren and Brandeis begin with the already long pedigree of copyright in unpublished works when they write, “From corporeal property arose the incorporeal rights issuing out of it; and then there opened the wide realm of intangible property, in the products and processes of the mind.”  

Not only do most people, and certainly most creators, still feel that the products of the mind are a form of personal property, but this was the exact point of reference chosen by a pair of legal lions to make the case that a right of privacy actually exists.  Consequently, Jeong might want to consider the possibility that copyright law provides guidance for the protection of our personal data rather than a warning of what can happen if we become the “owners” of that data.  Or, if we’re looking for warning signs in historic property rights regimes, my friend Neil Turkewitz observes …

“If property rights are the model, then Silicon Valley’s dismal track record on intellectual property rights is a giant red flag that simply vesting property rights is of little consequence to the extent that such property rights are essentially unenforceable — particularly for individuals. Since the dawn of the internet, notwithstanding their legal rights, creators and innovators have had to endure an avalanche of illegally available copies of their works online.”

So, maybe, as Warren and Brandeis noted, copyright does have something teach us about privacy that is quite different from Jeong’s misguided assumptions. But what do I know?  I’m just spitballing.

Really, Cory? Then how the hell did we get to now?

“One of the reasons Hamilton found the word democracy so offensive was because he realized that the vast majority of American citizens had not the dimmest understanding of what he was talking about.”  – Joseph Ellis –

Proving that it is easier to be a futurist than a historian, Cory Doctorow contributed a bit of soothsaying to a New York Timesseries the editors describe as follows:

… science fiction authors, futurists, philosophers and scientists write Op-Eds that they imagine we might read 10, 20 or even 100 years from now.

So, Doctorow projected himself ten years into the future, gazed back at the present, and decided that the heedless error we are making is not ignoring climate change or precipitating a completely avoidable war with Iran or even committing mass child abuse at the southern border.  No, what Doctorow considers the potential misstep of the moment could be a decision to amend the policy of zero-liability for web platforms.  That will be the decision we will regret ten years from now:  telling internet companies that they may no longer give people the finger, even when they are directly responsible for injury.  He writes …  

“Bit by bit, the legal immunity of the platforms was eroded — from the judges who put Facebook on the line for the platform’s inaction during the Provo Uprising to the lawmakers who amended section 230 of the Communications Decency Act in a bid to get Twitter to clean up its Nazi problem.”

The only point on which Doctorow and I might agree is that the reaction against Big Tech—including the chatter about regulation and possibly amending the liability shield in Section 230—is that lawmakers, the press, and the public may be responding to the wrong stories.  The efficacy with which Facebook removes unpalatable content is not the major issue. For one thing, they apparently already filter out so much garbage we never see that some of the moderators who dosee it have suffered from PTSD.  Additionally, I would agree with Doctorow that so long as these platforms are used, a certain amount of ugly is going to persist, and we are going to have to learn to deal with that as a society.

But the first order of business in addressing the immunity paradigm for websites is actually fairly low-hanging fruit from a statutory perspective.  As discussed in this post, there are websites that trade in material that, in any other context, would be sued out of existence, yet remain shielded for no reason other than the fact that they operate online.  Sites that purposely host material that is libelous, defamatory, inciting violence, vengeful, infringing, etc. is not comparable to Facebook and Twitter stumbling in their efforts to maintain civil online communities.  And Doctorow is being ridiculous when he lumps it all into one regulatory narrative. 

Individuals and businesses who are injured online through conduct that is unquestionably illegal in real space should not be left to crash into the Section 230 wall when pursuing their legal rights to relief.  It would be a major step in the right direction, and relatively easy legislative work, to make clear that websites that intentionally trade in material, which would ordinarily be actionable, no longer enjoy automatic immunity from litigation.  Done.  No draconian censorship needed, as Doctorow seems to imply. 

Why Not Tweak the Experiment?

Meanwhile, Doctorow can hardly claim that the laissez-faire approach to the internet has produced many of the benefits he seems to think will be lost if we revise our policies.  As I say, it is easier to be a futurist than a historian, and he seems to have forgotten history when he writes, “Democracies aren’t strengthened when a professional class gets to tell us what our opinions are allowed to be.”  

Perhaps not what our opinions are allowed to be, but that’s Cory being Cory—sowing fear of censorship rather than considering the more subtle effect the internet has on the valueof opinion-making.  It is not merely chance that the rapid expansion of “internet culture” coincided with the erosion of trust in professionals (i.e. experts), who have some damn good reasons to recommend what our opinions oughtto be on a number of important topics.  The aforementioned shrugging at climate change comes to mind.  

The democratization of opinion-making, leading to the inevitable folly that all opinions have equal value, may be seen by historians as a major catalyst to explain how the putative leader of all democratic republics, the United States, managed to achieve its present state of freefall on such a wide range of policies.  At no time in living memory has the federal government been manned by such a large group of temp-job hacks without a single credential to recommend them for the departments they run. 

The most powerful and extensive military force in the world has not had a legitimate Secretary of Defense since the day seven months ago that one of the most qualified commanders we have resigned because he considered the administration’s policy too incoherent to follow.  And whether they will admit it publicly or not, every serious Republican on the Hill paled at the news of Mattis’s departure but would not say so for fear of being instantaneously thrashed on Twitter by mobs of citizens who haven’t got a clue what they’re talking about.  If the free-for-all internet is so good for society, Cory, how and the hell did we get to now?  

I know what Doctorow and his friends like to say. Don’t blame the internet for the degradation of statesmanship, intelligence, common sense, and decency.  But why not?  The relatively novel introduction of social media, adding an unprecedented scope of direct democracy into the process, has been an experiment.  It is neither logical to assume, nor evident to observe, that the experiment has yielded only positive results.  So, we should not be afraid to adjust the conditions of the experiment.  I can certainly imagine looking back ten years from today and regretting plenty of policy decisions, but I don’t think holding internet companies responsible for their actions is going to be on that list.